International Child Abduction

Overview

This article will demonstrate the differences in proceeding with a court application where the child has been wrongfully removed or retained from either: (i) a country that is not a contracting state to the Hague Convention; or (ii) a country that is a contracting state to the Hague Convention.

Non-Hague Convention cases

In Ontario, the Children’s Law Reform Act (CLRA) is the relevant legislation for the left-behind parent who is seeking a return order for a child who has been taken without permission to a country that is not a signatory to the Civil Aspects of International Child Abduction (the “Hague Convention”), or where the dispute is inter-provincial within Canada.

Under the CLRA, Ontario courts can assume jurisdiction and make a parenting order for a child under any of the following provisions:

• Section 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced; 
• Section 22(1)(b), if the child is physically present in Ontario at the time the application is commenced, and other requirements of the section are met;
• Section 23, if the child is physically present in Ontario and would, on the balance of probabilities, suffer serious harm if removed from Ontario; and
• Ontario has parens patriae jurisdiction under Section 69.

Habitual residence

The CLRA defines habitual residence as the place where the child lived in whichever of the three circumstances occurred most recently: (i) with both parents; (ii) if the parents are living apart, and one parent has custody or care of the child through a separation agreement, with the other parent’s consent (express, implied or by acquiescence) or under a court order; or (iii) with another person who is not a parent but the child is living with them on a permanent basis. To remove the child without the consent of everyone with decision-making responsibility for the child will not change the child’s habitual residence unless there has been acquiescence or undue delay in commencing the proceedings.

In December 2024, the Supreme Court of Canada heard the case of Dunmore v Mehralian and provided clarity for how courts should deal with the issue of habitual residence, stating:

“[Section 22 of the CLRA and its subsections] serve Part III’s purpose of dissuading the abduction of children as an alternative to due process. They ensure that if a child has been wrongfully removed or withheld before the commencement of the application, it is generally their residence before the wrongful act that is determinative of jurisdiction.

The proper interpretation of the word ‘resided’, grounded in the text, context and purpose of Part III, is simply living in a place as opposed to merely visiting it.

[F]or very young children who may not have clear objective ties to a place, the ties of those who are taking care of them are likely to weigh more heavily in the analysis. Very young children rely on the adults in their lives to create a home for them, and the ties of those adults to a jurisdiction, including their intentions about the family’s residence, therefore become relevant.

Courts asking where the child is at home should look to ‘all relevant links and circumstances’. [...] Attornment of the parents to a foreign jurisdiction is, by itself, irrelevant to where the child is residing for purposes of s.22(2) and (3) of the CLRA.”

These provisions are not unique to Ontario. In fact, most other Canadian provinces and territories define habitual residence in their provincial legislations, ensuring some degree of consistency.

Not habitually resident

The court in Ontario may still decide to exercise jurisdiction when a child is not habitually resident in Ontario, if all the requirements listed under Section 22(1)(b) of the CLRA are satisfied.

Section 23 CLRA

If the court is satisfied that the child would suffer serious harm if they were removed from Ontario, the court might assume jurisdiction. “Serious harm” is not defined in the CLRA, but the Ontario Court of Appeal in Ojeikere v Ojeikere stated that the standard of harm required by Section 23 of the CLRA is less stringent than the standard under Article 13(b) of the Convention (see below).

Although the court in Ojeikere did not define serious harm, it did provide a list of relevant factors to consider. Some potentially relevant factors the court may use to determine if the child is at risk of “serious harm” are: the risk of physical harm, the risk of psychological harm, the views of the children, and a parent’s claim that they would not return home even if the children were required to do so.

Hague Convention

The objectives of the Hague Convention are outlined in Article 1 and include securing the prompt return of children who have been wrongfully removed or retained in a contracting state, and ensuring that rights of custody and of access under the law of one contracting state are respected in the others. The objectives of the Hague Convention are better understood when read in conjunction with the preamble.

The preamble of the Convention states that “the interests of children are of paramount importance in matters relating to their custody”. In short, the Convention recognises that the wrongful removal or retention of a child in a foreign jurisdiction can cause significant harm. Therefore, courts should presume that the children will be better served by their immediate return to their habitual residence.

It is important to emphasise that the Hague Convention is not a means by which parents can resolve custody issues. This is articulated in Article 16 of the Convention, which states that the authorities of the contracting state to which the child has been removed or retained will not decide the merits of the custody issue until after they have determined that the child should not be returned to the left-behind parent. A return order is simply designed to restore the status quo that existed before the wrongful removal or retention so the relocating parent cannot gain a tactical advantage in litigation.

In Office of the Children’s Lawyer v Balev (“Balev”), the Supreme Court of Canada weighed in on the importance of ordering the prompt return of children who have been wrongfully removed or retained in a foreign jurisdiction. The prompt return serves three related purposes, namely, protecting against the harmful effects of wrongful removal or retention, deterring parents from abducting a child with the hope of settling in a new country to get custody, and expediting the process to resolve the merits of the custody or access dispute in the child’s habitual residence.

Each contracting state must establish a central authority. Federal states like Canada must establish a central authority in each province. The central authority plays an important role in facilitating the Convention’s objectives. It assists with individual cases, but more than that, it educates the public and co-operates with law enforcement, social services and non-profit organisations. Although the central authority in Canada does not act for the applicant in the proceedings, it can assist them with locating the child or guiding parents through the application process.

Conditions for a return order

There are three conditions to satisfy before a court can order a return order, unless one of the narrow enumerated exceptions applies. The moving party has to prove that:

• the child was habitually resident in a contracting state immediately before any breach of custody or access rights;
• the applicant has custody rights to the child that were being exercised at the time of the wrongful removal or retention; and
• the child was wrongfully removed or retained.

There are a few things the left-behind parent should keep in mind before proceeding with a Hague application. The Convention does not apply to children who are 16 years old and above. Additionally, pursuant to Article 12, the left-behind parent must file the Hague application within one year of the wrongful removal or retention. Promptness is key; delay can have serious consequences on the outcome of the case.

Habitual residence

The determination of whether a child is “habitually resident” in a country is the crux of the legal analysis required to order their return. However, the term “habitual residence” is not defined anywhere in the Convention. That means it is up to the courts in each contracting state to develop the tests and guiding principles to interpret the meaning of habitual residence. In Canada, this issue was determined by the Supreme Court in Balev.

In Balev, the Supreme Court adopted a “hybrid” approach, which now dominates the analysis in Canadian courts. The hybrid approach requires courts to consider all the relevant factors of the case at hand, and shift the primary focus away from parental intention or the child’s acclimatisation to their new home. The challenge for the application judge is to determine the focal point of the child’s life, family and social environment immediately prior to the removal or retention. There are no “rules” for the application judge to follow, and no single factor will make or break the case.

Exceptions to a mandatory return order

Once a parent has successfully proved that the child was habitually resident in a foreign jurisdiction immediately prior to the wrongful removal or retention, the court is required to order the child’s return, unless one of the narrow exceptions applies.

The exceptions are articulated in Article 13. They are intended to be very limited in scope, and the threshold to apply the exceptions is extremely high. If it were easy to establish the existence of an exception, Canada would be viewed as a “safe haven” for child abduction.

Article 13a

Courts are not required to order the return of a child where the relocating parent can establish that the left-behind parent either acquiesced or consented to the removal or retention. If the left-behind parent consented, then no custody or access rights were breached, and thus the Convention does not apply. Here, consent would not apply if one parent permitted the other to take the child to a foreign jurisdiction for a limited period (eg, a vacation to visit family in another country).

What does “to acquiesce” mean in this context? Essentially, it means to agree, silently or passively, to something. The courts take inaction as a means to imply consent. It is determined by the parents’ words and conduct, which includes silence. Meaning, if a child is wrongfully removed or retained, but the left-behind parent does not make their opposition known, the court is not required to order the child’s return.

Article 13b – grave risk of harm

Article 13b is the grave risk of harm exception. Courts do not have to order a child’s return if in doing so they would be exposing that child to physical and/or psychological harm, or placing them in an intolerable situation. The question then becomes: how do we define what “grave risk” means?

The Supreme Court of Canada answered this question in Thomson v Thomson. The word “grave” must be read together with the words “otherwise place the child in an intolerable situation”, which led the court to the conclusion that the risk must be more than an ordinary one; that it must “not only be a weighty one, but that it must be one of substantial and not trivial psychological harm”.

For Article 13b, a grave risk of harm can only occur in two situations. First, where the return of the child would place that child in immediate danger, before the custody issue can be resolved in court (eg, if ordering the child’s return meant they were going to return to a war zone). Second, where the child would be at risk of suffering serious abuse and/or neglect, or where the court in the country of habitual residence is incapable or unwilling to provide the child with appropriate protections.

Article 13(2) – child’s objections

Article 13(2) provides an exception for when the court finds that the child objects to the return and has “attained an age and degree of maturity at which it is appropriate to take account of its views”. In Balev, the Supreme Court of Canada provided some clarity on how courts should treat a child’s objections. The application judge can refuse to order the child’s return if the child is of an appropriate age and/or level of maturity.

This can be a difficult issue, and judges must be careful to ensure that the child’s objections are authentically theirs, not a result of parental influence. Nonetheless, a child’s objections should not determine the outcome of the case. Courts must still consider the Convention’s objectives.

Article 12 – settled into new environment

If the left-behind parent commences the proceedings a year or more after the alleged wrongful removal or retention and “it is demonstrated that the child is now settled in its new environment”, the court does not need to order the child’s return.

Before the court can apply the exception, it must first determine where the child’s habitual residence is. Subsequently, the court must assess the child’s present ties to the new country. The court will consider factors such as social and cultural integration, stability, and the child’s emotional well-being. In Balev, the Supreme Court of Canada stated that the “settled intention” exception simply ensures that the court considers what is in the best interests of the child before they are displaced again.

Conclusion

In short, there are significant differences between an application under the CLRA or the Hague Convention, but the guiding consideration is always the child’s best interests. When dealing with an international child abduction, the questions to ask are relatively similar. Regardless of which framework will govern the case, the courts will attempt to balance international comity, deterrence and prioritising the child’s well-being.